Suing to Block Oklahoma’s Constitutional Amendment

by Duncan Hollis

A few days ago, Roger (and others) discussed the possibility of legal challenges to Oklahoma’s constitutional amendment prohibiting its judges from considering international and Sharia law.  I have my own questions about the amendment under the Supremacy Clause beyond the more obvious arguments that Oklahoma Courts must apply treaties that fall within Article VI’s ambit (putting aside for now debates over whether non-self-execution limits which treaties fall within Article VI).  For example, does the Amendment preclude state judges from looking to foreign law to interpret the meaning to give to a U.S. treaty obligation?  Chief Justice Roberts and Justices Kennedy, Scalia, Ginsberg, Alito and Sotomayor all endorsed doing so last term. Or, what about looking to the law of treaties to discern what constitutes a U.S. treaty commitment or how to interpret it?  If they don’t look to such international and foreign laws, on what grounds would Oklahoma judges interpret or apply a U.S. treaty?

These questions, however, do not appear widespread among those troubled by the amendment.  For now, the focus appears to be on its singling out Sharia law specifically.  And, as anticipated, that move has generated a law suit:

An Oklahoma Muslim filed a federal lawsuit on Thursday to block a state constitutional amendment overwhelmingly approved by voters that would prohibit state courts from considering international law or Islamic law when deciding cases.

The measure, which got 70 percent of the vote in Tuesday’s election, was one of several on Oklahoma’s ballot that critics said pandered to conservatives and would move the state further to the right.

The lawsuit, filed in U.S. District Court in Oklahoma City, seeks a temporary re[s]training order and injunction to block the election results from being certified by the state Election Board on Nov. 9. Among other things, the lawsuit alleges the ballot measure transforms Oklahoma’s Constitution into “an enduring condemnation” of Islam by singling it out for special restrictions by barring Islamic law, also known as Sharia law.

“We have a handful of politicians who have pushed an amendment onto our state ballot and then conducted a well-planned and well-funded campaign of misinformation and fear,” said Muneer Awad, who filed the suit and is executive director of the Council on American-Islamic Relations in Oklahoma. “We have certain unalienable rights, and those rights cannot be taken away from me by a political campaign.” About 20,000 and 30,000 Muslims live in Oklahoma, Awad estimated.

Legal experts have also questioned the measure.

Joseph Thai, a professor at the University of Oklahoma’s College of Law, said the ballot measure is “an answer in search of a problem.” He said he knows of no other state that has approved similar measures.

“There is no plausible danger of international law or Sharia law overtaking the legal system,” Thai said in an e-mail to The Associated Press. He said courts only consider international law when deciding issues involving a federal treaty, a business contract or a will that incorporates international law.

Thai said the ballot measure “raises thorny church-state problems as well” and could even affect a state judge’s ability to consider the Ten Commandments.

Jess Braven over at the Wall St. Journal Blog has his own story on the suit as well.  It seems then that we’re only at the start of a national conversation on these issues.

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